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The Same-Sex Future

The third principal justification advanced for denying marriage to same-sex couples asserts that homosexual sex is immoral, and that the state has a legitimate interest in withholding its imprimatur from conduct that society deems immoral. Some courts and gay rights advocates respond by reasoning that, like “tradition,” “moral disapproval” standing alone is simply an insufficient justification for discrimination. In support of this proposition, they cite Lawrence v. Texas, the 2003 Supreme Court decision that declared unconstitutional a criminal law prohibiting homosexual sodomy.7 The Court in Lawrence reasoned that at least with respect to consensual sexual relations among adults, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” As Professor Evan Gerstmann of Loyola–Marymount College notes in Same-Sex Marriage and the Constitution, the Lawrence decision “arguably undercuts one of the best known reasons for banning same-sex marriage: moral disapproval of gay and lesbian relationships.”

But Gerstmann uses the word “arguably” advisedly. The court in Lawrence took pains to note that whether the state could preserve marriage for opposite-sex couples was a different question. As Georgetown law professor Robin West acknowledges in Marriage, Sexuality, and Gender, “there is a difference between criminal bans on gay conduct, on the one hand, and the state facilitation of gay marriage, on the other.” The state regularly makes choices about what to promote or endorse based on judgments about morality. Indeed, much of public education would be impossible if state officials could not make choices based on morality about what should, and should not, be taught. And while the Supreme Court has recognized a constitutional right that bars criminal prohibition of abortion, the Court has permitted the state to favor childbirth over abortion on moral grounds by providing health insurance coverage only for childbirth.

Other courts and commentators have rejected the moral disapproval argument by pointing to recent legal reforms as evidence that the state in question does not in fact officially disapprove of homosexual conduct. Thus, the California Supreme Court cited state laws prohibiting discrimination on the basis of sexual orientation and repealing criminal sodomy penalties to support its conclusion that “this state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals.”8 The Massachusetts and Vermont Supreme Courts cited similar developments in their respective state laws to reject claims that denying benefits to homosexual couples furthered the states’ disapproval of sexual relations between homosexuals.


While the moral disapproval argument has fared poorly in the courts, it still seems to have traction in American politics—and may well be one of the reasons for the disjuncture between the legal case for same-sex marriage and political resistance to it. West argues that same-sex marriage proponents should not rule morality out, as the courts have done, but take morality on. She convincingly articulates an affirmative moral case that the “good” of marriage—fostering intimacy and caregiving for dependents—applies equally to homosexual and heterosexual couples. In addition, she argues, gay sex is good for the same reasons that heterosexual nonprocreative sex is good—it “contributes to intimacy, builds trust, encourages openness, and shared responsibility…. It’s not called ‘making love’ for nothing.”

In politics, the moral argument is complicated by religious overtones. Judeo-Christian conceptions of permissible and impermissible sexuality have a profound influence on public attitudes toward marriage. A poll taken shortly after the Goodridge decision of the Massachusetts Supreme Court found that 53 percent of respondents considered marriage principally a religious matter, and only 33 percent considered it principally a legal matter. Among the former, there was overwhelming opposition to the concept of gay marriage; among the latter, a majority favored recognition of same-sex marriage.

Recent court decisions have stressed repeatedly that they address only the question of “civil marriage,” a secular institution created and defined by the state, and leave untouched religions’ freedom to define and implement “religious marriage” in their own terms. But as University of Michigan law professor Douglas Laycock argues in his essay in Same-Sex Marriage and Religious Liberty, the problem is more deep-rooted:

Part of the reason the same-sex-marriage issue is so intractable is that it arises in the context of our most fundamental and long lasting breach of separation of church and state…. In marriage, legal and religious institutions are thoroughly combined.

Laycock suggests that the marriage debate might be considerably less heated if religious and civil marriage were more clearly separated. To that end, he proposes that “civil marriage” should be performed by state officials only, and should determine all the civic benefits, rights, and duties that accompany marriage. “Religious marriages” would be performed by clerics, pursuant to their own rules and regulations, and would have no effect on state laws. Over time, these separate rituals and rules would reinforce the message that civil marriage and religious marriage are distinct institutions.

West offers a similar prescription, proposing that marriage reform advocates adopt a strategy aimed not at extending marriage to same-sex couples, but at replacing marriage with civil unions for all. She believes that such a legal development would help make clear the purely secular nature of the state’s interest in long-term committed relationships, and would free the issue of the religious features that make reform so controversial. She envisions a future in which civil unions would be available to any two committed persons, without regard to sexual orientation. Marriage would also remain available, but West hopes that couples of all orientations would increasingly choose civil unions over marriage precisely because the former would be more consistent with notions of fairness and justice.

In addition, as West notes, there are many reasons to be critical about the institution of marriage, which has permitted society to shirk collective responsibility for dependent care by relegating it to the private sphere, where women shoulder a disproportionate share of the burden. A shift to civil unions might create an opportunity to reshape the institution to ameliorate some of marriage’s negative effects; and including same-sex couples might help to undermine the stereotyped conceptions of gender that contribute to marriage’s flaws.

West and Laycock may be correct as a theoretical matter that taking the religion out of civil marriage would be a marked improvement. But as a practical matter, there is no political constituency either for replacing marriage with civil unions or for separating civil and religious marriage. As long as marriage remains the preferred option, gay rights advocates are likely to insist that relegating same-sex couples to civil unions denies them equal respect, and with good reason. And even if one could identify a constituency for separating civil and religious marriage, such a campaign would very likely provoke at least as much passionate opposition as the same-sex marriage movement has.

In Gay Marriage, Eskridge and Spedale also advocate a strategy focused on civil unions, although on more pragmatic grounds. Citing an article by Professor Kees Waaldjik, who helped develop the strategy behind the Netherlands’ recognition of same-sex marriage,9 Eskridge and Spedale argue that the best way forward is incremental. On this view, states (or nations) are likely to recognize same-sex marriage only after a step-by-step process in which they first eliminate laws criminalizing homosexual sodomy, then amend anti-discrimination laws to cover sexual orientation, then extend some government employment–related benefits to same-sex partners of civil servants, and then enact a domestic partnership or civil union law. Where advocates press for same-sex marriage without that incremental foundation, they are likely to fail, or worse, to provoke a backlash, as did the pro-same-sex-marriage judicial decisions in Hawaii in the 1990s.

The recent state court decisions recognizing the right of same-sex couples to marry support the incremental thesis. As noted above, the California and Vermont courts relied on the history of gay rights legal reforms within their states to counter claims about moral disapproval of homosexuality. And in Connecticut and California, the fact that the legislature had already extended virtually all the benefits and rights of marriage to same-sex couples under the rubric of civil unions or domestic partnerships was crucial to the legal victories. Because there were no tangible differences between marriages and nonmarriage partnerships, both states found themselves defending a law that seemed to serve no purpose other than the patently illegitimate one of relegating same-sex couples to a second-class status.

The current same-sex marriage strategy in the United States is also incremental in a geographical sense, proceeding state by state rather than at the federal level. Gay rights advocates have made a conscious effort to keep the issue away from the federal courts, preferring to develop their arguments on state constitutional grounds or in state legislatures in order to shield them from review by the conservative United States Supreme Court.

Accordingly, these groups were widely critical of the recent lawsuit challenging California’s Proposition 8 on federal constitutional grounds, even though it was filed by the team of Theodore Olson and David Boies, the lawyers who represented Bush and Gore, respectively, in the legal battle over the 2000 election. Advocates worry that the national political climate is not yet ready for the recognition of same-sex marriage. No federal gay rights bill has ever passed Congress. Discrimination on the basis of sexual orientation is not prohibited by federal law. And the most recent federal law addressing the issue, the 1996 Defense of Marriage Act, expressly limits federal marriage benefits to opposite-sex couples. During the election campaign, President Obama promised to repeal the Defense of Marriage Act and to end the military’s “don’t ask, don’t tell” policy, but he has not taken initiative on either matter yet.

Olson and Boies may well have considered the legal arguments against gay marriage to be so weak as to practically invite a federal constitutional challenge. And California may be the best venue for such a suit, precisely because, as noted above, the state affords same-sex couples all the rights and benefits of marriage, leaving no justification for denying them the label “marriage” other than the bare desire to relegate gays and lesbians to a second-class status—a desire the Supreme Court condemned as illegitimate in both Lawrence v. Texas and Romer v. Evans,10 the 1996 ruling invalidating a Colorado anti–gay rights referendum. Still, the stakes are extremely high, and the risks of an adverse decision from the Supreme Court are considerable. Incrementalism would have been the smarter strategy.

Each incremental victory at the state level, moreover, helps to prepare the ground for eventual broader reform, for at least two reasons. First, opposition based on the contention that same-sex marriage is an oxymoron is plausible only so long as there is no such thing as same-sex marriage. Now that thousands of same-sex couples have been married, no one can claim that same-sex marriage is simply unthinkable. Second, just as the increased visibility of gays and lesbians over the last generation has reduced fear and prejudice born of ignorance, so the fact that marriage has been extended to same-sex couples in several states and nations without any deleterious consequences is likely to undermine opposition based on fear of the unknown. While a majority of all Americans still oppose gay marriage, 57 percent of Americans under forty support it; time is on gay marriage’s side.

Eskridge, Spedale, and West also argue that the best forum for achieving lasting victory is legislatures, not the courts. That seems less clear. There is no question that those seeking change cannot restrict their advocacy to the courts; a multitiered strategy is critical. But the recent court decisions suggest that it would be wrong to write off the judiciary. In view of the polls showing continued popular resistance to gay marriage, progress in the political realm is likely to be difficult. At the same time, the patent weakness of the legal arguments against recognizing same-sex marriage suggest that courts may be a more receptive forum. Polls show much less resistance to civil unions, and in some instances, majority support for that alternative. Thus, a state-by-state strategy that pursues civil unions politically, and same-sex marriage through the courts, may be most likely to succeed.

Moreover, as Gerstmann argues, judicial decisions can serve as a catalyst for political change. The first year after the Massachusetts Supreme Court approved same-sex marriage, a constitutional convention in Massachusetts voted 105–92 in favor of an amendment barring same-sex marriage. Massachusetts law requires such a vote two years in a row, however, and the next year, the amendment was voted down, 157–39. In 2007, the amendment again was defeated, 151–45. Today, 56 percent of Massachusetts voters approve of same-sex marriage. The supreme court decision took some time to sink in, but seems to have played a positive role in changing the political landscape.

As the United States Supreme Court has recognized, the history of constitutional law “is the story of the extension of constitutional rights and protections to people once ignored or excluded.”11 Just as the institution of marriage survived its extension to couples of different races in the 1960s, so it will survive its extension to couples of the same sex in the twenty-first century. If the inclusion of same-sex couples changes the institution, it is likely to be for the better, rendering it more consistent with ideals of fairness. For marriage itself, then, and more important for the constitutional principle of equality, the only just result is to accord equal dignity and respect to all those who choose to enter long-term, committed family relationships, irrespective of their sexual orientation.

—June 4, 2009

  1. 7

    Lawrence v. Texas, 539 U.S. 558 (2003).

  2. 8

    In re Marriage Cases, 43 Cal. 4th 757 (2008).

  3. 9

    Kees Waaldjik, “Small Change: How the Road to Same-Sex Marriage Got Paved in the Netherlands,” in Legal Recognition of Same-Sex Partnerships: A Study of National, European, and International Law, edited by Robert Wintemute and Mads Andenaes (Hart, 2001).

  4. 10

    Romer v. Evans, 517 US 620 (1996).

  5. 11

    United States v. Virginia, 518 US 515, 557 (1996).

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